Opinion
This panel unanimously finds this case suitable for decision without oral argument. Fed. R.App. P. 34(a)(2).
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Appeal from the United States District Court for the District of Oregon Michael R. Hogan, Chief Judge, Presiding.
Before O'SCANNLAIN, GRABER, and McKEOWN, Circuit Judges.
Page 855.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.
Randall Wynn was convicted by a jury for conspiring to "Distribute, and Possess with Intent to Distribute, Controlled Substances, to-wit: Heroin, Methamphetamine, Cocaine and Marijuana" in violation of 21 U.S.C. § 841(a)(1). He was sentenced to 211 months' incarceration and 60 months' supervised release. Wynn appeals, challenging his sentence and conviction under the Supreme Court's recent ruling in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). We affirm.
Wynn argues that Apprendi has retroactive effect and thus invalidates his sentence and conviction because the district court sentenced him on the basis of drug amounts not submitted to the jury. We need not reach the issue of retroactivity because Wynn's Apprendi claim is without merit. In United States v. Nordby, 225 F.3d 1053, 1059 (9th Cir.2000), we held that an individual cannot be sentenced pursuant to Apprendi above the "prescribed statutory maximum," which is the maximum punishment to which the defendant could be exposed "solely under the facts found by the jury." In this case, the statutory maximum is prescribed by § 841(b)(1)(C), which provides a maximum sentence of 20 years' incarceration and indefinite supervised release without regard to a finding of any drug amount. Because Wynn's sentence does not exceed the prescribed statutory maximum, we affirm his conviction.
AFFIRMED.